Alternative Dispute Resolution Options in Family Law
When I meet a new family law client, one of the first questions I am asked is “How much will my trial cost?”
My clients are sometimes taken aback by my response: in my view, using the Court system to resolve family law disputes should only be implemented as a “last resort”. In my family law practice, I have found there are a small percentage of cases that definitely need to be resolved by a Judge using the traditional court system. However, I advise my clients that, for the vast majority of family law files, traditional court room litigation is the most expensive, acrimonious and time consuming option available to separating spouses. Clients are pleased to learn that there are many alternative dispute resolution (“ADR”) options available which usually are less expensive, quicker and less adversarial than traditional litigation.
In British Columbia we are governed by the Family Law Act (the “FLA”) which strongly encourages separating spouses to resolve family law disputes outside of the Court system. The FLA is drafted to ensure that parties to a family law dispute are informed of the various methods available to resolve the dispute, and to encourage parties to resolve the dispute using out of court agreements or other family dispute resolution tools before they resort to making an application to a court;
In fact, in British Columbia, all family law lawyers have a professional obligation to discuss with their clients the advisability of using various types of family dispute resolution tools to resolve their case. Family law lawyers are also required to go a step further by informing the client of the ADR facilities and resources that are available to assist them.
As a family lawyer I take this professional responsibility seriously. I endeavour to explain to my clients, in a clear and concise manner, the broad range of ADR options available. Whether the ADR tool is appropriate in the circumstances will depend on the facts of the particular client’s case, and most significantly the attitude of the opposing party. The family law dispute resolution options may include:
- Party to Party Negotiations. This is often referred to as “kitchen table” negotiations. After parties receive some legal advice, some clients are able to work directly with their spouse to reach a settlement through informal discussions and compromise.
- Family Justice Counsellor: These are accredited mediators who can assist parties in reaching agreements. Family Justice Counsellors are funded by the government and subject to certain limitations, their services are available free of charge to separating spouses.
- Lawyer to Lawyer Negotiations: These are often called 4-way meetings. In these meetings both parties and their respective lawyers sit down to negotiate in an effort to resolve the dispute without resort to litigation.
- Collaborative Law: the parties each retain specially trained lawyers and sign a Participation Agreement committing to resolve their dispute by agreement outside of the court system. In Collaborative law parties may also be assisted by other professionals like Divorce Coaches and Financial Neutrals.
- Mediation: is a voluntary process involving a neutral third party, who works with the parties to facilitate communication and assist them in resolving their dispute.
- Arbitration is a private form of adjudication that also involves an impartial and neutral third party but the neutral will impose a settlement.
- Parenting Coordination is a child centred process that includes consensus building and then determination making of parenting issues.
- Med-Arb is a hybrid process that often involves a single neutral third party retained to conduct both the mediation and the arbitration.
- Traditional Litigation: Even when parties find themselves involved in traditional litigation, there are alternative dispute resolution tools built into the court system. Judicial Case Conferences and Judicial Settlement Conferences are designed to help the parties settle their dispute before they set the matter down for a full trial.
Monica McParland is a member of our family law department and can be reached at email@example.com or (250)869-1120.